We are a Law Firm Specializing In Non-Compete Agreements, Trade Secret Law, Customer List Litigation. Our team is positioned to provide the representation and legal advice which will ensure you understand your legal rights, with offices in Detroit, Michigan and Traverse City Michigan and Los Angeles, California.

Our lawyers have handled complex cases involving millions of dollars in alleged damages, taking several cases to trial on behalf of national and international corporations. Our non-compete and trade secret attorneys have advised employees, managers, owners and employers in the negotiation of non-competition contracts and helped companies protect their valuable intellectual and intangible property rights. In many instances, immediate injunctive relief is both appropriate and necessary to stop unlawful behavior before customers are lost or the unlawful behavior irreparably harms company interests.

Managing Partner Enrico Schaefer:"Traverse Legal's attorneys know non-compete and trade secret law and pride themselves on advanced litigation techniques which are both cost-effective and budget oriented. When it comes to technology, there are very few firms that can match our capabilities. Because we are a boutique litigation law firm, we know how to strategically and efficiently accomplish our client's goals. "

If you have an issue involving non-compete agreements, trade secret theft, customer list theft or breach of fiduciary duties by corporate mangers, officers or owners, our lawyers can provide you the legal advice you need to fully protect your rights. Contact us today at 866.936.7447 (international toll free) or send us an email for a no-risk consultation.

Blue-penciling is a term in the non-compete arena that indicates that a court or judge can modify a non-compete agreement to make it reasonable where it is otherwise unreasonable as it applies to an employee. Many states allow judges, such as Michigan for instance, in a non-compete matter, to blue-pencil or re-write an otherwise unreasonable non-compete agreement to make it a reasonable non-compete agreement. There are other states, such as New York, that do not generally blue-pencil a non-compete agreement and simply invalidate the agreement should it find that the terms of the Non-Compete Agreement are unreasonable. It is important to know the limits of a court in assessing your non-compete agreement.

Non-compete agreements have been around for a while and because they now have an extensive history, we are beginning to see some backlash concerning the appropriateness of non-competes. For instance, the State of Massachusetts is considering banning non-compete agreements arguing that the Uniform Trade Secret Act, which prevents employees from stealing trade secrets, is sufficient to protect employers when employees leave their employment. Recent publicity of non-compete cases involving non-compete restrictions against employees who would not be in a position to damage their employer upon leaving employment such as camp counselors and the like have enticed the backlash against non-compete agreements. I also see a growing trend particularly in touch economic times of judges attempting to find reasons to restrict or invalidate non-compete agreements.

What do you think? Do non-compete agreements hinder fair completion and are employers adequately protected by existing trade secret laws? Or, are non-competes favoring competition because they encourage employers to entrust confidential information and key relationships to employees that they would otherwise not share in the absence of a non-compete agreement?

If you have a non-compete agreement that requires enforcement, consult an experienced non-compete attorney for appropriate advice concerning the validity of your non-compete agreement.

Welcome to Trademark Law Radio, a top web resource on issues of trademark infringement, trademark licensing, trademark protection, and trademark registration.

Matt: Hi, it’s Matt Plessner, and welcome back to Trademark Law Radio. Today’s subject is non-compete litigation and the importance of knowing your Judge. To talk with us about that today, we welcome back Attorney at Law Mark Clark from Traverse Legal Office of Traverse City, Michigan. Mark, it’s nice to have you back.

Matt: Well, good morning to you. Let’s start off by talking about what is non-compete litigation, Mark?

Mark: Well Matt, non-compete litigation is the situation where, either as an employer or an employee, a lawsuit is initiated concerning what we call a non-compete agreement. A non-compete agreement is an agreement signed by an employee, where the employee agrees for a period of time and in a geographic region not to offer competitive goods or services to a competitor for a period time. These are popular tools anymore for employers to be able to protect some of their business interests, client and customer lists, as well as trade secrets, in the event they lose an employee to a competitor. When the employee leaves, if the employee ends up at a competitor, often times if there is a non-compete in place and the employee persists in their employment with the competitor, we end up with non-compete litigation.

Welcome to Trade Secret Law Radio, we bring you the best in trade secret news, legal advice and information. From trade secret misappropriation to trade secret agreement drafting and negotiation, we cover the issues here.

Matt: Hello and welcome back again to Trade Secret Law Radio, I am Matt Plessner and today we are going to discuss computer forensics and how to legally protect your trade secrets when it comes to computers and electronics.

Mark Clark, of course, joins us from the Traverse Legal office of Traverse City, Michigan once again today. Mark, Good Morning.

Matt: I am doing very well, thank you! Now to start off, can you please tell the audience and everybody listening what is exactly meant by computer forensics?

Mark: Well, Matt, computer forensics deals with preservation, identification or extraction of evidence from a computer or computer system. Computer forensics, and when I say computer forensics, it’s your IT or technology guy who has special training in what we now call computer forensics and forensic is a fancy name for an investigator. It is like a computer private ‘I’ if you will. And computer forensic investigations take advantage of the computers store and retrieve data. A trained computer forensic investigator can tell you, in many instances, whether something has been downloaded or removed from a computer or computer database, and often times they can actually get in and tell you exactly what it is that was either removed, downloaded or sent from one computer to another. And this has been very helpful in the area of trade secret law because gone are the days where the employee or an officer left the company and started his own company or her own company or went to a competitor with a box of documents. It just doesn’t happen anymore. What happens is things are download or saved or removed and transferred from a computer onto a mobile disk drive or onto another computer or sent electronically somewhere else. So if you are a company owner and you are concern about whether or not an employee left your employment with trade secrets, computer forensics is the thing that will likely tell you in the end whether that happened.

As we review court cases involving claims against former employees by employers for removal of trade secrets, there is a trend that suggests that courts are reluctant to make a finding that a trade secret is involved unless the employer has clearly established the requisites for a trade secret. An element of a trade secret claim is that the plaintiff employer must demonstrate it took sufficient actions to protect its trade secrets from unauthorized disclosure. The factors include whether the plaintiff had agreements with employees and others, including customers, to restrict disclosure and any security precautions to prevent unauthorized access to the trade secret. Assuming a claimed trade secret is a trade secret because the employer says so, courts can still determine that a claim is not actionable because there was no effort by the employer to define the trade secret by way of agreements with employees and others or took the requisite precautions to prevent unauthorized access to the claimed trade secrets. One of the most popular defenses that employees claim is that the so-called trade secret was available to a myriad of employees and others because it was not protected by way of restricted access, password or other precaution, and which is a very strong defense in the event of a claim.

The moral of the story is that if you have important trade secrets to protect it is not enough to simply have your employees sign something that says they shall not remove or disclose trade secrets. The employer needs to define with as much particularity as possible what the trade secret is and take the necessary steps and precautions to restrict access to the trade secret.

For more information on trade secrets and how to better protect them, contact one of our highly experienced Trade Secret attorneys and lawyers.

There is a school of thought and opinion that suggests that non-competes are losing their attractiveness for variety of reasons. Those leading the discussion against the concept of non-competes claim that trade secrets and other intellectual property can be adequately protected with trade secret agreements and restrictions, and that employers are losing out on a significant part of the talent pool because there is a segment, that tends to be more motivated and talented, who will simply pass on employment rather than sign a non-compete. Every employer needs to assess whether there is a need for a non-compete depending upon the business, the business model and the business interests that are to be protected by a non-compete. The best way to protect against customer theft is still, in my view, the non-compete.

Often times when an employee leaves for employment at a competing business and is under a non-compete, the question arises who other than the employee should receive the threat letter to cease and desist violation of the non-compete? Often times, the former employer will consider sending a threat letter to the new employer. At other times if the non-compete language is suggestive of such, customers in the industry might also receive a threat letter. Recently, there was a case decided in the Eastern District of Michigan, Bonds v Philips Electronic North America, where the former employee sued his former employer for sending a letter to his new employer causing his termination. The Court ultimately decided in favor of the former employer, but the analysis leaves the door open for a former employee to sue his former employer in the event that the non-compete threat letter crosses the line.

Big businesses and their lobbyist have been working hard toward pushing the 113th Congress to do more to protect trade secrets, particularly, on the international front. There are a number of bills pending, including legislation under the Economic Espionage Act of 1996 (EEA) that currently only provides for criminal prosecution for violations, but would allow trade secret owners the opportunity to bring civil actions against foreign defendants or defendants located outside the United States for trade secret misappropriation. Another bill under the EEA would also provide for a private cause of action for trade secret theft against defendants who are located in the United States. These private rights of action under the EEA, if passed, would assist companies that face trade secret theft both domestically and internationally. The end result would provide greater intellectual property rights over sensitive or proprietary data. Consumer data has become a more important tangible asset to many businesses and appears to be the impetus for these pending bills under the EEA.

Another pending bill in Congress is under the Cyber Economic Espionage Accountability Act (CEEAA) and would permit the President to identify and penalize foreign officials that commit or aid in cyber-spying or trade secret theft through a variety of diplomatic and economic sanctions. There is also legislation being debated under the Computer Fraud and Abuse Act (CFAA) to include criminal penalties and additional damages related to critical infrastructure computers such as those that control chemicals or electricity.

Employers often obtain non-compete agreements or non-competition agreements from their employees. However, the employees are often in a position to successfully challenge the validity or reasonableness of the non-compete. Employers often ask, “How do I best obtain a valid non-compete agreement?” The best and most effective way to obtain a valid non-compete agreement by an employer from an employee is to do it with the offer of employment to the employee.

There is legislation pending and being debated in Michigan that would require employers to obtain a non-complete agreement from the employer and include it with the offer of employment, otherwise it would be invalid. Absent the passage of the legislation, the most effective way to obtain a valid non-compete is to still include it with an offer of employment. This does several things. It avoids the argument from the employee that the non-compete agreement was made without consideration because the employee will understand that it is a condition of the employment. It will remove the stigma of unfairness as the employee will no longer be able to argue that he or she did not know what they were getting into in executing the non-compete agreement. It will also go a long way towards an employee attempting to argue that the non-compete agreement is unreasonable in both scope and duration, which is otherwise a requirement for a valid a non-compete, because the employee executed the agreement at the same time he or she was offered employment, making the reasonableness argument much more difficult. Finally, it will take the away the sympathy factor from a judge who is often moved by the fate of the employee who indicates that “I was faced with signing the non-compete or losing my existing employment”.

What is the best way to obtain a non-compete agreement? The best way to obtain a valid non-compete agreement is to offer the non-compete agreement at the same time you make an offer of employment to the employee.

There are
non-compete agreements and there are usually employment agreements that contain
either non-compete agreements, or what we call the non-disclosure of trade
secret clauses, or of course sometimes called confidentiality provisions in
employment agreements. The difference between the two is that a non-compete
seeks to restrict your employee or contractor from competing against you within
a certain geographic region for a certain period of time.

Announcer:
Welcome to the Trade Secret Law Radio. We bring you the best in trade secret
news, legal advice, and information. From trade secret misappropriation to
trade secret agreement drafting and negotiation, we cover the issues here.

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